Kidnapping Not Established If Minor With Sufficient Understanding Voluntarily Accompanies Accused Without Inducement: Delhi High Court

"Where a minor, having sufficient understanding, voluntarily leaves the protection of her guardian and joins the accused, it cannot be said that the accused has 'taken' her, unless there is clear evidence of inducement or active participation in forming such intention." Delhi High Court, in a significant judgment, held that the essential ingredient of "taking" or "enticing" for the offence of kidnapping under Section 363 of the IPC is not established if a minor, possessing sufficient understanding, voluntarily joins an accused without any active inducement.

A bench of Justice Chandrasekharan Sudha observed that the prosecution must prove that the accused removed the minor from the custody of lawful guardians against her free will through force, deceit, or inducement to sustain a conviction.

The case originated from an appeal filed by the State against a trial court judgment dated November 28, 2014, which acquitted the respondent, Vikas Kumar, of charges under Sections 363, 366, 506 of the IPC and Section 12 of the PoCSO Act. It was alleged that the accused kidnapped a 17-year-old girl (PW3) on July 31, 2013, by threatening to upload her photographs on the internet, subsequently taking her to Haridwar and Pauri Garhwal with the intent to compel her into marriage.

The primary question before the Court was whether the accused had "taken" or "enticed" the minor victim within the meaning of Section 361 IPC to constitute kidnapping from lawful guardianship. The Court was also called upon to determine if the conduct of the victim during the alleged period of kidnapping supported the allegations of coercion and whether the acquittal by the trial court was perverse.

Distinction Between 'Taking' And 'Allowing To Accompany'

The Court placed heavy reliance on the landmark precedent of the Supreme Court in S. Varadarajan v. State of Madras (1965) to distinguish between the act of "taking" a minor and merely allowing a minor to accompany someone. The Court noted that when a minor, who has attained sufficient understanding, chooses to leave the protection of her guardian voluntarily, the accused cannot be held liable for kidnapping unless there is evidence of active participation in forming such an intention.

"Where a minor, having sufficient understanding, voluntarily leaves the protection of her guardian and joins the accused, it cannot be said that the accused has 'taken' her, unless there is clear evidence of inducement or active participation in forming such intention."

Conduct Of Victim Inconsistent With Coercion

The Bench closely examined the testimony of the victim (PW3) and found significant contradictions between her Section 164 CrPC statement and her cross-examination before the trial court. While she initially alleged threats and being slapped, she admitted during cross-examination that the accused had never slapped her. She further conceded that she had never given any photographs to the accused and was unaware if he actually possessed any, rendering the alleged threat of "defaming her online" speculative and unsubstantiated.

"Such conduct is inconsistent with that of a person who is being taken away under coercion or threat."

Lack Of Resistance In Public Places

The Court observed that the victim travelled with the accused in public buses and visited crowded terminals like Anand Vihar and Haridwar, where numerous passengers and police officials were present. Despite having several opportunities to seek help or escape, the victim admitted she did not raise any alarm or inform anyone that she was being forcibly taken. This lack of resistance, the Court noted, created a serious doubt as to whether the accused had actually removed the victim from her parents' custody by force or deceit.

"Despite having several opportunities to escape or seek assistance, she also admitted that she did not seek help even while travelling in the autorickshaw or during the bus journey."

Absence Of Sexual Assault And Harassment

Regarding the charges under Section 366 IPC and Section 12 of the PoCSO Act, the Court highlighted the victim's own admission that the accused neither had sexual intercourse with her nor sexually assaulted, abused, or touched her in any manner. The Court held that without reliable evidence of an act constituting sexual harassment as defined under Section 11 of the PoCSO Act, the offence under Section 12 could not be made out beyond reasonable doubt.

Offence Under Section 12 PoCSO Act Not Established

The Bench emphasized that the essential ingredient of sexual harassment requires proof of an act or threat of a sexual nature. In this case, the alleged threat to upload photographs was deemed "doubtful" due to the victim's admissions. Consequently, the Court found no reason to interfere with the trial court's acquittal, concluding that the appreciation of evidence was neither perverse nor unsustainable.

"In the absence of reliable evidence establishing the alleged threat or any act constituting sexual harassment within the meaning of Section 11 of the POCSO Act, the offence punishable under Section 12 of the Act is also not made out beyond reasonable doubt."

The Delhi High Court dismissed the State's appeal, affirming that the prosecution failed to establish the essential ingredients of "taking" or "enticing" required for a kidnapping conviction. The Court concluded that the victim's voluntary conduct and the lack of independent evidence to corroborate threats justified the acquittal of the accused.

Date of Decision: 10 July 2026